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The EPO's plans to restrict post-service employment

Merpel wrote recently about the latest plans of the European Patent Office to reform the Boards of Appeal of the EPO. One aspect present in the earlier proposals of CA/16/15 (see IPKat here, here and here) was that post-service restrictions on employment should apply to former members of the Boards of Appeal, in order to prevent the appearance of conflicts of interest. This aspect has been removed from the main proposal and made the subject of an entire new proposal of its own, to apply not just to Board of Appeal members, but all employees of the EPO.

According to the proposal document:

In order to foster the public’s trust in the integrity of the services provided by the
EPO, it is important to prevent the risk of real, apparent or potential conflicts of
interest not only during service, but equally after its termination. [original emphasis]

But is this true, Merpel wonders? Have there been any, let alone any significantly large number of occurrences of, situations where what EPO employees have done after leaving the EPO has diminished "the public’s trust in the integrity of the services provided by the EPO"?

As the proposal document itself points out:

The EPO’s legal framework already foresees specific obligations applicable after termination of service: an obligation to behave with integrity and discretion as regards the acceptance of certain appointments or benefits (Article 19 of the Service Regulations), and an obligation not to disclose professional information (Article 12 EPC and 20(3) of the Service Regulations).

What is the evidence that further regulations are needed in this area?

Anyway, the basic plan is stated to be as follows:

For the purpose of monitoring post-service activities, all former employees would for a certain time after leaving the service be obliged to inform their appointing authority prior to engaging in any occupational activity, gainful or not.

If the envisaged activity is related to the work they carried out immediately before leaving the service, and could lead to a conflict with the legitimate interests of the Office, the former employee could be exceptionally prohibited from taking this activity, by decision of the appointing authority. In order to make the prohibition relevant, only the duties carried out during last up to three years of service would be taken into account.

The proposal gives the EPO two months to impose any restriction, otherwise the departing employee is free from restriction. This part at least seems reasonable.

A feature of the earlier proposal, that the departing employee might be financially compensated in respect of any restriction imposed, has, handily for the EPO, been dropped:

The monitoring and case-by-case assessment of envisaged post-service activities would help clarifying the practical scope of the integrity obligation. Decisions of the appointing authority would be the result of a careful consideration and balance of the interests of the former employee (freedom of work) and the service. Prohibitions would only be applied in exceptional cases, where an envisaged post-service activity raises concrete integrity-related concerns, and thereby puts at stake the general integrity obligation. Thereby, the former employees’ freedom of work would not be limited in a way such as to justify a financial compensation.

But Merpel, as alert as a patent attorney for inconsistency between the Description and the Claims of a patent, notices that the draft amendments to the Service Regulations that are set out in the proposal, makes no reference to "Prohibitions would only be applied in exceptional cases" - instead it gives the EPO administration wide-ranging and unfettered powers:

(2) A permanent employee or former permanent employee intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service, shall inform the appointing authority thereof.
If that activity is related to the work he carried out during the last three years of his service and could lead to a conflict with the legitimate interests of the Office, the appointing authority may, having regard to the interests of the permanent employee or former permanent employee and the service, either forbid him from undertaking that activity or give its approval subject to any conditions it thinks fit. [emphasis added]

It further states:

(8) The appointing authority may lay down further terms and conditions for the application of this Article to the respective employees; these shall cover in particular the form and content of the information referred to in paragraph 2.

It must be cause for concern where powers are stated to be used only exceptionally, but granted without restriction. Moreover, the EPO is explicitly moving to a situation where more employees are expected not to stay their whole working lives with the EPO, so the question of what an ex-employee can do will rise in prominence. For example, the proposals for reform of the Boards of Appeal plan to remove security of tenure so that Board members can no longer expect to be automatically re-appointed at the end of each 5 year term.

For the Boards of Appeal, the most significant issue is that Board members cannot improperly use their former status to the advantage of a particular party by representing them in proceedings before the EPO, but this was dealt with more than 2 decades ago in case G/94.

As an organisation, the EPO is struggling (to put it politely) with its staff relations. It is baffling that the Administrative Council might think it to be a good idea to to add to the list of staff grievancesby granting the EPO President, who is the "appointing authority" for most staff, an entirely new ability to control the career of staff members even beyond their departure from the Office, without at least being convinced first that the lack of such powers was damaging the Office.

So Merpel returns to her original question - what is the evidence that further restrictions are required now?

85 comments:

I am puzzled at how a former member of a Board of Appeal could take a position where he or she would create a conflict with respect to the legitimate interests of the European Patent Office.

Indeed, we have G2/94. But as this relates to partiality, one would say the proposed oral submission of the former Board member could harm the interests of the other party, not so much the interests of the EPO. And, by the way, G2/94 related to partiality of the Board of Appeal, which is, as we all know, not part of the European Patent Office (hmm... ok, they are employed by the Office?).

So, again, what legitimate interests of the EPO could be at stake for any position taken up by a former Board member?

There does not need to be "evidence" to support any whim of the President. Who is going to say him nay? However, there are several benefits from his point of view. As already noted, this measure would have a crippling effect on members of the Board of Appeal wishing to pursue any "occupational activity" after leaving the EPO. In a strategy to undermine the BoA this is another effective action.

There is also the benefit of blocking the activities of anyone retired or dismissed who wishes to work for SUEPO, whether paid or not. There are already several people who would potentially be affected by this measure, especially the two SUEPO leaders dismissed in Munich. Displease the President and the risk is that he and his investigators will pursue you to the ends of the earth and for the rest of your working life.

This is a measure of pure vindictiveness, with no reasonable justification whatsoever.

For comparison, the relevant provision that the US PTO imposes is seen in 37 CFR 11.10, of which I provide an excerpt:

"(b) Post employment agreement of former Office employee. No individual who has served in the patent examining corps or elsewhere in the Office may practice before the Office after termination of his or her service, unless he or she signs a written undertaking agreeing: (1) To not knowingly act as agent or attorney for, or otherwise represent, or assist in any manner the representation of, any other person: (i) Before the Office, (ii) In connection with any particular patent or patent application, (iii) In which said employee participated personally and substantially as an employee of the Office; and (2) To not knowingly act within two years after terminating employment by the Office as agent or attorney for, or otherwise represent, or assist in any manner the representation of any other person: (i) Before the Office, (ii) In connection with any particular patent or patent application, (iii) If such patent or patent application was pending under the employee’s official responsibility as an officer or employee within a period of one year prior to the termination of such responsibility."In other words, you can't work on a patent/application that you worked on as an examiner, and you can't for two years work on patents/applications that were under your responsibility in your last year in the PTO.Pretty straightforward.

@Ketzeneke and others:No, ipkitten is not fully banned.Only the ipkitten.blogspot.de is banned.All other country codes still work. .nl; .co.uk; .mx did still work this afternoon. The difficulty is avoiding the automagic forwarding to "your" country code...

IPkitten could adjust their template to prevent this behaviour info on how to.Otherwise you would ned to change your browser settings (preferred language).

Mr. Freyberg,It may also be worth remembering that the EPO has supported (and still does support) examiners to sit the EQE. Indeed for some posts internally it is at least advantageous for a candidate to have passed it. Now, the President wishes to have the right to block that possible transfer from the EPO to the other side. Joined-up thinking? Or what?While focussing on those post-EPO activities, readers may also wish to consider the effect these rules will have on internal discipline. Who will dare to not follow the party line with the knowledge that BB has an ace up his sleeve to punish dissent? A principled stand now will carry extra risk. Better to resign quietly and not rock the boat rather than stand up and be counted. Who needs a gagging order?

Nearly 25 years ago there was a drought of applications and a program was instituted at the EPO for sending out examiners to assist industry and attorneys. Some still talk glowingly about their experience.

@anonymous 22:29the support you are talking about consists in paying the EQE registration and grant 3 days for the exam as well as 3 days to recover - should you pass everything (!!). Better than nothing, but still not much of a support if you ask me, considering the amount of work you have to put, and going down also, as the EPO does not pay for re-sitting the exam anymore.Also consider that passing the EQE does not exactly increase your chances to be promoted to director - when it comes to management at the EPO, the dumber, the better.

Rumours - confirmed by some industry sources - are numerous that industry and private practice are receiving more and more applications for patent attorney positions from EPO examiners.

While I see more and more advertisements on Linkedin re. recruitment of examiners.

@ Derek Freyberg:Well, that USPTO regulation makes perfect sense. And is a good example for the EPO, if not yet in place. For the interest of applicants, not for the direct interest of the EPO.

So still... Conflict of interests of the EPO... outside counsel to SUEPO? Investigative agency hired by the AC to investigate too close family ties at the top of the EPO?I am still very much in the dark what such legitimate interests of the Office may be.

"For the purpose of monitoring post-service activities, all former employees would for a certain time after leaving the service be obliged to inform their appointing authority prior to engaging in any occupational activity, gainful or not."

Hardly Draconian.

Such anti-EPO management postings remind me of the article in the Cotswold Times entitled "My desperate search for a second pony for my daughter, Tiffany"

Seems to me that the EPO, whilst refusing to admit applicability of national employment law, is attempting to impose extra-jurisdictional employment law obligations on its former staff. One could easily imagine, for example, the case where a former employee is hired by a government or military department under whose own rules they would not be allowed to divulge the fact to others, i.e. the EPO, that they were employed by said department.

Other questions spring to mind :

Has the expression "for a certain time" been defined ?

Is any compensation for potentially limiting a former employee's freedom of movement to work provided for ?

Oh I forgot, we're in the protective bubble zone of EPO employment law - literally a law unto itself.

"If the envisaged activity is related to the work they carried out immediately before leaving the service, and could lead to a conflict with the legitimate interests of the Office, the former employee could be exceptionally prohibited from taking this activity, by decision of the appointing authority. In order to make the prohibition relevant, only the duties carried out during last up to three years of service would be taken into account."

For example, this means that if the President engineers the dismissal of a staff representative - a purely hypothetical scenario of course ! - under the new regulations he can then prohibit that person from engaging in any union-related activities (whether gainful or not).

A slightly different view, trying to balance the needs of the EPO and the needs of its former staff:

Part I

To be fair, the question of what a former permanent employee can do immediately after leaving the EPO is indeed a problem. Actually, why should it be limited to permanent staff? Even staff under contract can gain information which might be useful in a future employment, the more so if the contract is plurennial or has been renewed a few times.

Just a few examples:

It all started with G 2/94. G 2/94 is only dealing with a former member of a Board of Appeal, appearing shortly after retirement as an accompanying person wanting to address his former colleagues. That his former colleagues did not appreciate is fully understandable. The time limit of three years imposed on former members of Boards is too long, but a cooling off period seems reasonable.

G 2/94 only applies to a very specific situation. What about a former member of a Board of Appeal, who was a qualified representative before joining the EPO, and who regains its quality of qualified representative as soon as he has left the office? Should he come and address his former colleagues as representative shortly after he left the office? May be in ex-parte proceedings it would not matter so much, but I would not like to be the other party in inter-partes proceedings. I would I least utter some protest.

The same applies mutatis mutandis to former examiners regaining their quality of qualified representative when leaving the office.The problem is not acute with staff members of the EPO having passed the EQE. They cannot be immediately taken on the list of qualified representatives. A cooling off is indirectly provided.

When you also see two former chairman of Boards of Appeal taking sides with a party, by drafting a legal advice going plainly against the Office, one is puzzled, to say the least, cf. R 8/13.When you see a former chairman acting for a firm of representatives in the field of CII, you may feel ill at ease.

A slightly different view, trying to balance the needs of the EPO and the needs of its former staff:

Part II

Simply negating that there could be a problem is a bit too easy. What is not correct is to push such a reform through without any proper discussion and concertation. It would be wrong to apply this measure as of a given date, without taking into account existing situations.

I could well imagine a twofold solution:

For any new member of EPO, including members of boards of appeal, joining the EPO as off a given date, he should be informed of a possible bar, of let’s say two years, when leaving the office. For those people, no compensation should be given. This might not ease recruitment, but one cannot have it both ways.

For member retiring as off a given date, and for which the above does not apply, then compensation should be given. You cannot change afterwards the conditions which have motivated a person to work for the EPO in a way which was not foreseeable. There is plenty of ILO case law on this topic.

One situation in which the EPO should not have any problems with, is when a former member engages in education or training. This could even be in the interest of the EPO, and could represent an exception to a possible ban.

I do not think that the problem just came up when BB became president. It was apparently a problem raised by the auditors. It is just another point BB wants to push through in its effort to show that he is the boss and that staff of the EPO needs to be put on short reins.

A clear source of concern is how this new regulation will be put into practice, whatever it might be, especially when somebody like BB is in power. For a long time, Presidents of the EPO had extensive powers. They used them with care, and in general not in order to take personal revenge. With BB this changed, but not to the better.

It should certainly not be allowed that the President can decide at his whim which type of activity is to be authorised or not. The present draft is much too vague and opens the door to arbitrary decisions. This should not be allowed.

The regulation for former staff of the USPTO seems a good compromise. A corresponding rule could apply only for staff having been involved in prosecution of applications and oppositions. Then it should be seen that a corresponding regulation is taken for staff having worked in other areas of the EPO, for instance IT.

Here as well, the mere fact that there is no simple and quick mechanism in dealing with conflicts between staff, actual or former, and the Office is in place is badly felt. The system of internal appeals and of going to the ILO tribunal is not adapted at all to such circumstances. A former member of the EPO might have died before the ILO Tribunal takes a decision……

Between a complete ban and the possibility to act in technical area in which a former member of EPO has not worked in the last three years, lots of different scenarios are possible. But this should be discussed, and not left to a decision per ordre de mufti.

Yes, the EPO deserves some reforms, but not reforms which do even further promote the arbitrary, especially in view of the totally deficient mechanism of conflict resolution.

To make things clear I am not one of BB’s admirers, the contrary is even true.

This is sqaurely aimed at further weakening the Boards of Appeal. (The separation of this proposal from the now separate proposal for reform of the Boards, is just as fatuous as making the Boards more independent by moving them geographically...)

Say I am a lawyer or patent attorney, 50 or so years old with 25-30 years experience under my belt. Just the kind of person who might be ideal as a board member. But now, if I get the job at 50 I only have 5 years "tenure" (i.e. no tenure at all) then I am possibly out on my ear at 55 and blocked from returning to private practice as a consultant or of counsel. I probably won't apply for that board member position then.

This is all part of the overall intention to weaken the boards. BB was told that he had to end the crippling block on new appointments to the boards, so now tries to make the position unattractive to quality candidates...in favour of what, the UPC?

Incidentally a 2 year restrictive covenant would be unenforceable in most if not all EPC states; 6 months if one is lucky (e.g. to prevent a lawyer from immediately poaching clients when s/he leaves a law firm). And how could the EPO enforce it? It could not. But it could try to withhold pensions, for example. Withholding an accrued benefit would also be highly suspect, but the affected person would only have eventual recourse to the ILO AT...and so it goes.

How is this intended to be enforced? In the broad form drafted, it appears that any examiner leaving voluntarily (or laid off for not meeting his norms under the 5 year plan) could be banned from any paid or unpaid contact with patents for two years. This is in my (non-specialist) view restraint of trade and as such unenforceable under most circumstances under UK & EU law. To which tribunal would the EPO apply to injunct the ex-employee from taking up a relevant job? Surely no national court would enforce such a contract term? The EPO appealing to the ILO?!

The only effective enforcement means that I can see is the EPO holding the ex-employee's pension rights hostage - "take that job and we will cancel your pension" - leaving the ex-employee as the plaintiff trying to find a tribunal respected by the EPO.

Well, if you stayed only 5 years, you can have your pension rights paid out as lump sum (up to ten years of EPO employment this is possible, after that the money is stuck in the EPO pension system and cannot be transferred out to your pocked).

So, someone who stayed only 5-10 years is nearly immune to threats by the organistaion to not work, as his pension is payed out already, and there is nothing the administration can take hostage anymore.

Enforcement by the administration would have to be through national courts.But our leader will find ways. Like making the hiring very risky for companies which employ registered representatives... New regulations can be implemented which would allow administration to revoke the right to represent before the EPO for anyone in contractual employment relations with a former employee not observing any restrictions the appointing authority "saw fit".

As many have pointed out, the proposal in CA/29/16 would grant the president of the EPO ridiculously broad - and essentially unfettered - powers to interfere in the future employment of EPO employees. Whilst in practice this may only amount to powers to withhold pension payments, it still represents a steam hammer to crack a nut.

Merpel - it seems that you have seen a copy of CA/29/16. Does that mean that it is publicly available? If so, then can you point me to where I might find a copy, so that I can raise my concerns about that proposal with my country's representative to the AC?

Yes, Merpel has seen a copy, but it is not publicly available and Merpel is not in a position to post it. She hopes that there is enough information in this post (and in the precursor proposal CA/16/15 which is public and linked above) for you to raise concerns as appropriate.

It isn't draconian, but standard practice in many walks of life and is needed more in some. e.g. Defence secretaries obtaining immediate employment with arms dealers.

There was a discussion about potential conflict when Robin Jacob acted for Samsung a few years ago. It is a real concern that needs addressing. I'm not of the opinion that EJ should have been banned from acting as he did, but I mention it as a relevant example.

Even the EPO unions more surely agree that its members spend too much time on this website?

The new EPO Service Regulations the Council members will vote on at the next council meeting - and you can guess if they will agree on it with a majority vote - includes among other a clause that makes it mandatory for permanent staff to ask the EPO president for permission to stand for elections at any (national, community or other) level, including staff representation, even after they left the EPO.

Standing for elections is a constitutional right the President has enjoyed and still enjoys very much for his present employment.

I agree that there should not be a conflict of interest between the functioning of an employee of the EPO and his personal interests but making such a decision dependent on the personal opinion of the President who is himself involved in such a conflict of interest is disproportionate and in itself a conflict of interest.

With these new Service Regulations staff are one step further to be deprived of even more of their national constitutional and civil rights.

Mister Battistelli said he is not a “sun king” but if he promotes these new rules he shows that he is. The new version of the service regulations will be voted on after nice dinner with plenty of good wine for the delegates, all paid for by the EPO.

PB,You may not have noticed but the EPO staff member isn't quite at defence secretary level. And what may be normal is negotiated garden leave, not extra-legal whim of a single person. There are ways to address the issue - see the USPTO - which do not place absolute power in the hands of an employer. Or do you think that the right to fire someone comes with a right to block their employment anywhere else for 2 years?What is clear is that staff's contract of employment is being unilaterally changed, again, without a clear or explained need but in a manner which can only ever be applied to staff's detriment and without any notion of negotiation or compensation.

"negotiated garden leave" isn't the "norm". EPO employees have this funny idea of the world outside their own. "The grass is greener" view is appropriate in many cases, but few places have grass as green as the EPO, except other international organisations.

Many contracts have controls over post-leaving employment, which apply irrespective of the manner of termination. Try searching the web for employment tribunals on the subject. The employer invariably wins.

Are you seriously suggesting that the EPO would be able to justify its actions before a real-world employment tribunal? I would love to see them try. You cannot simply introduce such a significant condition of employment unilaterally, with retrospective effect for all existing employees.

Many contracts have controls over post-leaving employment, which apply irrespective of the manner of termination.

(§ 74 Abs. 2 HGB).Germany : control not longer than 2 years, compensation at least 50 % of the last salary

UK Garden leave: (Wikipedia)Employees continue to receive their normal pay during garden leave and must adhere to their conditions of employment, such as confidentiality, at least until their notice period expires

US : Some jurisdictions, such as the state of California in the US, invalidate non-compete-clauses for all but equity stakeholders in businesses.[see above)

As someone who is very familiar with the defensible scope and duration of post-termination restrictive covenants, I can inform you that you are talking total rubbish.

I can't decide if you know this and you're deliberately stirring things up for your own amusement, or if you truly believe what you're saying. If the latter is the case, then I can only conclude that you must be on BB's payroll. This is because I cannot believe that anyone else who conducted independent research on this topic could ever come up with the conclusions that you have reached.

I would love to see a national court being asked to consider the legitimacy of the proposed, post-termination restrictions for EPO employees. Contrary to what you believe, I am pretty certain that the court would have great difficulty enforcing such provisions (due to one or two minor matters, such as infringement of civil liberties and human rights, as well as the fact that the proposed provisions go way beyond what might be justifiable as protecting the legitimate interests of the EPO).

By the way, is there any reason why you believe the proposed, post-termination restrictions are appropriate in their current form (as opposed to a more reasonable form, such as something modelled along the lines of what the US PTO uses)?

@Merpel

A copy of CA/29/16 would certainly be preferable, yes. Then there would be no grounds for the AC representative denying the existence of (or the specific wording of) the provisions that I believe are so objectionable.

Are there no plans for CA/29/16 to be made public, then? Or is it just that we will need to wait a little while longer?

@PB: A previous employer of mine tried to get a two-year non-compete clause, covering four different countries, into my contract. My lawyer must still be laughing about that.

Clauses covering subsequent employment are indeed relatively common in employment law. But when such clauses have such a long duration, unlimited territorial scope and offer no compensation to the departing employee, they stand a snowball's chance of being upheld in court. At least in countries with minimum employee protection.

What distinguishes employment from human bondage isn't the wage or the benefits (some specialised slaves in Roman times had a pretty good living, for example), but an employee's freedom to leave and seek another employment when he or she finds it fit. Not even marriage has such stringent clauses in most countries these days. Judges are therefore likely to take a very low view of employers who unnecessarily restrict their former employees' freedom to work and trade.

It should perhaps be made clear to new recruits that the EPO pension is conditional on their loyalty to the EPO (or at least to its management).

I heard the other day that the EPO's health insurance may soon be brought in-house. This probably makes sound financial sense. It would enable the EPO's management to keep a closer eye on all those spurious medical expenses claims. There will be vast savings to be made. And it would be yet another loyalty lever to be pulled when needed - another string for the President's puppetry finger.

Garden leave covers the notice period (all or part) of a contract. It is occasionally agreed, rarely contractual and most often enforced, non-negotiable. It does not cover post-employment.

As for non-compete clauses being a breach of human rights etc, proof of the pudding may be familiar, but not knowledgeable.

Madhouse said:"A previous employer of mine tried to get a two-year non-compete clause, covering four different countries, into my contract."

Tried, maybe, but clearly failed. Doesn't make it non-binding if you had signed it. If it was so laughable and non-binding, why didn't you just sign it rather than waste money on lawyers fees? Anyone who needs to speak to a lawyer before signing an employment contract can't be overly confident in this area of law.

If people are going to bleat at least get your facts right. And for those that pretend to be experts in the know, why?

PB,Do we presume the B doesn't stand for Bosman? You may remember that Bosman was out of contract (but still being paid a reduced amount) but even in the regulated world of professional sport, his previous employer was unable to prevent him seeking employment (in another country at that). Battistelli is similarly ill-advised to think he can dictate future activities (gainful or not) to ex employees. He may be existing in a quasi-lawless world but any attempt at pretending that is 'real life' is simple. As for garden leave, it is notionally within a notice period but that reflects the condition that a notice period is being enforced to prevent employment and does include compensation. In such a case there would be no further blanket ban on any activity (paid or not) as proposed here at the EPO's whim. That is particularly relevant when the victim will have no speedy access to a court for any injunction.

Now I can't decide whether you're deliberately being a total numpty. My comment about breaching civil liberties was not connected with "standard" non-compete clauses in restrictive covenants, but instead what is proposed by the EPO.

If you bothered to read what is proposed, you would see that "the appointing authority may... forbid him from undertaking that activity...". That is most certainly not a standard non-compete clause (leaving aside the difficulty of establishing which, if any, commercial activity could ever be deemed to "compete" with the EPO). Instead, it represents an infringement of the ex-employee's civil liberties (freedom to choose his own employment). Surely even you can spot the difference. I know that the UK courts can.

With regard to breach of human rights, I refer you to Article 8 ECHR. According to Liberty, that article encompasses a right to "respect for privacy when one has a reasonable expectation of privacy". I would have thought that being "obliged to inform their appointing authority prior to engaging in any occupational activity, gainful or not" represents an arguable breach of that right. This is because there is surely a "reasonable expectation of privacy" for at least the non-gainful activities in which one participates.

By the way, you have still not answered my question about why the current proposals are preferable to alternative (much more reasonable) forms of post-termination restrictions. I can only assume that this is because you do not have a sensible answer.

@PB,Why the reference to English law, or indeed any law? You may not have understood if you are not an employee but there is no law to control contracts of employment. The notional conditions of employment can be and are changed unilaterally to become the new contract. Thus if the AC decide that post-employment restrictions of any kind can be applied, then they will be. Of course, you may reply, I have the option to leave in that case. Erm, no. I have no right to renounce or reject the new 'law'. It is immediately applicable and resigning merely starts the process of having to get permission to take new employment. My pension is the hostage. Leave, take employment without permission and I violate the new employment rules.

Suspicion is, by the way, that it may be applied retrospectively even I.e. to people who have already left within recent times. Nice.

So Mr. B, if your boss tells you tomorrow that your conditions are being cut and if you don't like it and want to leave, he'll have to be allowed to decide whether you can get any employment or not for the next 2 years because he has unilaterally introduced that into your conditions of employment too. Is that normal in any jurisdiction? Where the only employment tribunal will take 7+ years to meet? If so, I suggest you join the EPO. Just your sort of employer and easy money to boot, you seem to think. They will soon be purposefully (over)recruiting. What could go wrong?

"As for garden leave, it is notionally within a notice period but that reflects the condition that a notice period is being enforced to prevent employment and does include compensation."

erm... can you repeat that? I didn't quite get it.

Garden Leave: For Example. Contract period provides for a notice period of 3 months. Either the employer or employee must give at least 3 months notice of termination of contract. Employee finds new job and hand in notice. The employee must work the 3 months notice period before starting the new job. Garden leave, as stated above, provides for the employee not coming in to work for the 3 months (or part thereof). They are still employed and receive their usual pay, but cannot start their new employment until the end of the 3 month period. There is no option with 'garden leave' to extend that period.

Proof of the pudding - you raised the 'non-compete clause' point. The fact I commented on it doesn't mean I said the EPO was instigating non-compete clauses.

Non-compete clauses are commonplace.Non-working-in-a-conflict-of-interest clauses are also common.

If you want to argue over the small print of what is intended go ahead, but I was responding in respect of all of the comments criticizing the basis for any restrictions whatsoever. Quite common on this website.

Q. "Cynic said...@PB,Why the reference to English law, or indeed any law?"A. See reference to "UK Garden Leave: Thursday, 9 June 2016 at 13:39:00 BST

UK consists of several nations with their own law. I referred to English law in response. Maybe a Scot can advise on the position in Scotland?

"So Mr. B, if your boss tells you tomorrow that your conditions are being cut and if you don't like it and want to leave, he'll have to be allowed to decide whether you can get any employment or not for the next 2 years because he has unilaterally introduced that into your conditions of employment too."

He cannot unilaterally insert new clauses into my contract without my agreement. He can dismiss me if I don't agree to the new contract. If I agree to the new terms then yes, he can enforce the restriction.My contract has been change twice, significantly, in the last 2 years. It is a take-it-or-leave-it position in the real world.

PB: "Tried, maybe, but clearly failed. Doesn't make it non-binding if you had signed it. If it was so laughable and non-binding, why didn't you just sign it rather than waste money on lawyers fees? Anyone who needs to speak to a lawyer before signing an employment contract can't be overly confident in this area of law."

Actually, the lawyer said that this clause was clearly illegal and that a court certainly would not consider it binding. Since both my then-prospective employer and me were negotiating the contract in good faith, my lawyer and me told him so, and he immediately softened the clause. In hindsight, I could have signed the proposed contract as it was, and relied on the non-assertability of the clause afterwards, but that would have probably led to rather higher legal fees for both me and my employer in the future...

Not being an employment lawyer, I surely wasn't confident in this particular area of law, so I hired one and I certainly don't think it was money wasted: for once, I ignored at the time that such a clause was illegal, and I'm happy I didn't have to contest it in court. But I did learn from that experience that overly draconian non-compete clauses, like those that the EPO's management is trying to incorporate into its regulations, fly in the face of most national employment law.

As for the entire tone of your response, I find it quite unbecoming from a legal professional, if you are indeed one. After all, the main point of hiring a specialised legal professional during the negotiation of a contract (just as when drafting a patent application), is that of preventing even having to go to court in the future to assert your rights. A copper-clad legal document is far better value than successful litigation.

"Comprende?" Yes, most probably comprende, y mucho. Has this legal blog become a xenophobic platform or PB just thought that because not everyone grasps the beautiful English law in an otherwise international IP blog, they must also not understand the language? Probably most of the readers of this blog do not speak English as a mother tongue. On the other hand, most of them probably speak at least two languages, one of them being English. Compare that with your average Brit...

PB - most of what you say is accurate and some of what you say is relevant. But what is accurate is not relevant and what is relevant is not accurate.

Restraint of employment for a period of two years is not commonplace anywhere. It would certainly not be enforceable in the UK.

Your original comment quoted the part of the document that was indeed not particularly remarkable or draconian, but was also not the proposed new rule. It is the proposed rule itself that most other commenters find to be draconian, and without sensible parallel. The closest equivalent is surely other patent office examiners, and nowhere are they subject to such provisions. We have heard the rules in the USA which are slight; in many jurisdictions such as Japan examiners pass into private practice quite freely.

The potential sensitivity of the two parallels you state are of a completely different order of magnitude - "Defence secretaries obtaining immediate employment with arms dealers" - really, you think that has anything to do with patent office examiners and BoA members? And the issue with Robin Jacob, which you allude to even though you think apparently he should not have been banned, was that as a retired judge still hearing cases in the Court of Appeal he could be engaged as a judge and a party expert at basically the same time.

But what you completely failed to engage with is that the decision as to whether a proposed activity conflicts is made unilaterally, after the fact, by the EPO administration and is not challengeable or justiciable - an appeal to the ILO is the only possible recourse and by the time a decision emerges from them the matter will be moot.

If you don't find that odd, or draconian even, or a cause for concern then there is something very wrong with you.

Try to grasp the subtext, dear chap. What is being debated here is not whether, in theory (i.e. to ensure that justice is seen to be done), some form of post-employment restrictions might be sensible. The concerns raised instead relate to the questions of: why now? why so draconian?

The call for evidence relates to the "why now?" question. That is, if there is no evidence of an urgent problem, then why rush to fix something that is essentially only a hypothetical issue? Of course it might be a good idea to fix it in due course, but there is plenty of solid evidence that points to other issues that require much more urgent attention. For example, the EPO clearly needs to establish rules that are designed to prevent nepotism / cronyism ... though admittedly, with the present management in mind, that may be akin to shutting the stable door after the horse has bolted.

The "why so draconian?" question is a much more worrying one, though - and one that you have absolutely failed to engage with. The proposed restrictions would be laughed out of any national court (as clearly contrary to numerous laws). That much appears to be unarguable. So why no concern about that on your part?

And there we have your lack of comprehension problem identified. At the EPI it's take it. Full stop. You don't agree with the EPI? You leave. But they still apply it to you. The law is changed. Leave and you may not work for 2 years within being in breach of contact if the office so decided. The current disciplined or banned colleagues massy decide to give up and leave the EPO but they will still be required to ask permission from BB to take up any activity. What can he do about it? Not pay some or all of your pension? Demote you so that pension is based on a let final allay? Not legal?? Who you going to call? ILO?

"PB - most of what you say is accurate and some of what you say is relevant. But what is accurate is not relevant and what is relevant is not accurate."

I like that.

2 Years may not be commonplace. I haven't seen the statistics. It certainly occurs and may well be binding. It is not a total restriction on employment, but a limited one considered necessary to protect the legitimate interest of the employer. That will be the position taken by the employer and the court will determine whether this is appropriate.

I am acquainted with a senior academic who went into industry and left within 18 months, and had a 12-month restriction on working within their highly-specialised area of expertise upheld by the tribunal. That was 12 months uncompensated after their 3-month garden leave notice period.

This regulation seems to be designed inter alia to prevent BoA members to jump ship and apply to sit on the UPC after having duly left service. They will forced to remain on board as the RMS Eponic goes down with all hands...

The question is whether this regulation would be binding on the UPC. Would there be a secret instruction at the UPC secretariat to discriminate against EPO BoA members?

Reading some of the comments above, I start thinking that it might have sense to consider the transformation of the EPO into an intergovernmental agency, thereby integrating it into the government structure of the Contracting States.

It would remove partially an "international organisation" nature of the EPO and would better bound the functionality of the EPO with national policies and organisation, in particular, with judicial system of Member States.

Many within and without the EPO have been saying this for quite a while.

The organisation has clearly overgrown its structure. But the prospect is bleak, as what ails the EPOrg is pretty much what ails Europe at large.

How can you create and implement an IP policy when small or postage stamp member states will go along with anything that keeps the money flowing into their coffers, and disregard anything other consideration?

How can you have a discussion about the rule of law when the populistic or authoritarian streak befalling places such as PL, HU, SK, and TR is contagious?

How can you find a solution when large states (GB, FR, DE) are too busy navigating at sight dealing with disasters (Brexit, refugee crisis, the so-called "war on terror") to deal with the festering situation at the EPO?

As long as BB keeps up the "success" narrative with his clients too happy to feign to believe him, the scandal will go on.

"Please reread your comment with the eyes of a Spanish speaker and reconsider it. "

No and no. If you or anyone else on the planet believes use of the word "comprende" by a British person is xenophobic, you have a muddled mind.

"As so often happens when people say xenophobic things, the speaker believes they should be considered mildly sarcastic "

Really? I haven't heard of that Rule of Law before.

As for my comments about being sarcastic, it wasn't in respect of the use of the word "comprende", so have a rethink.

As so often happens when people say xenophobic things, the speaker believes it is acceptable when it is directed at British people. But as long as it is aimed at "numpties" it is probably acceptable, eh PoP?

To Cynic: "At the EPI it's take it. Full stop." No, if you don't accept the changes you leave it - it is then unenforceable.

Us numpties have a lot of sympathy for BB with the protectionist attitudes he has to deal with. But then that is what defines us as numpties.

Hello everybodyHas nobody read the ECHR? What is the problem? At an international organisation no employee lives in a complete national legal system, with the protection offered by it. Many employees of the EPO have tried to complain before the ECTHR about violated rights. They were all dismissed as inadmissible. Why? Because the States which create an international organisation simultaneously transfer their governmental powers to it. So the victim employee has encountered a catch 22.If he tries to sue a national state, it is immune because of the transfer, if he tries to sue the EPO it is immune because it is not a contracting state of the ECHR. President Battistelli was right when he said that he was totally free and did not have to listen to anybody.

Let us not forget the essential here. The question is not whether 2 years is reasonable or not. The question is that Battistelli was explicitly instructed to negotiate and he is doing exactly the opposite of what the council asked. How can that be? Where will this systematic power grab lead the Office?

So do I take it that you still have no answer to the question that I posed?

I'm glad to see that you are fully embracing the moniker of "numpty". It seems that the cap fits pretty well right now. I would be delighted to be proven wrong, but so far I've seen nothing in your comments that could get you out of the big hole that you've dug for yourself.

Failure to engage with the real issues + venting spleen at anyone who irks you = troll (though I have to admit that I prefer "numpty" for you).

Awareness of the ECHR is high, hence our disbelief when VP1 said that the EPO complies with it - with a straight face, in his own language, but with a very nervous sip from a glass. Clearly, the EPO cannot, whatever it says, comply with the ECHR because this is unverifiable, and it is not subject to it. That's the important part. In fact, Battistelli's claim that he can do what he likes is absolutely true - and he did, showing the world precisely why the Convention was instituted in the first place.

But what is interesting is that most of the AC members, certainly the UK's, are subject to the ECHR and are expected to comply with it in all of their actions on behalf of their respective governments. Why they do not (at least publicy) is a puzzle. But what EPO employee would dare take their AC member to court? It would only be a matter of days before they had no standing, by reason of summary dismissal.

"To Cynic: "At the EPI it's take it. Full stop." No, if you don't accept the changes you leave it - it is then unenforceable." - PB

No. The EPO administration still has my pension. They may not be able to enforce anything through national courts/law, but the pension is a pretty big lever.If I am in breach of the ServReg, I can be "investigated", and accordingly disciplined. And the disciplinary measures include a potential 33% cut of my pensions. Per case and disciplinary proceeding.Amended Service Regulations always apply,a s there is only one version in existence. Previous versions do not exist. Therefore, not the ServReg of back then applies to me, but the ServReg as they stand now. Even for decissions made by me in the past when the ServReg may or may not have included something I would've breached back then.This does violate some principles of general law, but ILO-AT has until now seldom said anything against the application of amendments on events which occured before the applied amendments were proposed. And ILO-AT is an administrative tribunal (AT), not a general law tribunal. They might decide based on "acquired right", but they get more difficult to achieve and proof that in a case, and the administration now does not handle things efficiently, to prevent anyone from saying "but I always had access to that without problems before. It's an acquired right!".The lack of approval for cures seems to be goong in the same direction. It'll be even less funny when the current proposal for self-insurung the employees healthcare gets approved, allowing the administration to change health care provisions on short term and possibly per case. This will also apply to pensioners who are already in pension since years.

PB,Do you not understand or do you feign not to understand? As One of those... reiterated, the EPO has your pension under its control. Unenforceable? Who will stop the EPO enforcing what it wants? National law does not apply.

If I understand correctly, the President is introducing new laws meaning that if he fires me for failing to meet 15% yearly increases of examination targets, or because my husband is a patent attorney, he can prohibit me from working for 2 years, cut my pension and apparently also cut my health insurance.This sounds crazy when the office is announcing internally that they will recruit hundreds of examiners in the next 3 years to get rid of the backlog until 2020 (4 years). And at that point they will need hundreds of examiners less, of course. Who is going to be stupid enough to apply for a job at these conditions?In addition, this is not at all what the council asked. Maybe the President has a plan to destroy the EPO and replace it with a new patent system. Or maybe he is indeed crazy, I don't know. He is not so young. In any case, what can the council really do? Can they get rid of a President in advance? Can they force him to do anything?

I don't think he has a plan to replace the whole system with something else.He is just applying what he has learned and what has been applied to all public agencies and corporations for the last 3 decades, cost cutting at the bottom combined with bonuses for the top floors.He might kill the EPO in the process, but that is not very likely without political will to do so.He will probably do a lot of irreversible damage that will affect the whole IP profession in Europe, examiners and attorneys alike and also some applicants.After all, if filling a form is all that I need to get a patent, I certainly will consider doing that myself.

Above States:If that activity is related to the work he carried out during the last three years of his service and could lead to a conflict with the legitimate interests of the Office, the appointing authority may...

Catarina Holtz said...Hello everybodyHas nobody read the ECHR? What is the problem? At an international organisation no employee lives in a complete national legal system, with the protection offered by it. Many employees of the EPO have tried to complain before the ECTHR about violated rights. They were all dismissed as inadmissible. Why? Because the States which create an international organisation simultaneously transfer their governmental powers to it. So the victim employee has encountered a catch 22.If he tries to sue a national state, it is immune because of the transfer, if he tries to sue the EPO it is immune because it is not a contracting state of the ECHR. President Battistelli was right when he said that he was totally free and did not have to listen to anybody.

Dear Catarina,

I could not quite agree with your words for a number of reasons.

First of all, there must be a certain law of conservation of rights and obligations. With that I mean that if 38 EPC Contracting States, by signing the European Convention on Human Rights (ECHR), took certain obligations with respect to their citizens, the same 38 ECHR/EPC Contracting States should not be able to create between themselves an organisation which is not subject to the ECHR obligations. In other words, the 38 ECHR/EPC Contracting could not transfer to the EPO more than they actually have. What they have is powers under the ECHR obligations.

.If he tries to sue a national state, it is immune because of the transfer, if he tries to sue the EPO it is immune because it is not a contracting state of the ECHR.

Provisions of the ECHR makes it quite clear that the ECHR is meant for States or Union of States. Compliance with those obligations requires a State-type of structure, which a specialised organisation such as the EPO cannot have in principle. The EPO should be subject to the ECHR via its EPC/ECHR Contracting States, as explained above.

"President Battistelli was right when he said that he was totally free and did not have to listen to anybody."

Surely, there must be some limits to what can be added to the service regulations, prohibiting post-service employment without compensation seems dodgy to me. Surely as well, there must be some way to impeach Battistelli or to lift his immunity.

Most of European citizens take distance with European organisations/institutions.

Not long ago, we saw a negative vote in The Netherlands. The referendum about the “Act of the Association Agreement between the European Union and Ukraine” ended with 61% of voters voting against it and 38.2% of voters voting for it. The true goal of the Dutch referendum was to attack Europe's unity.We have to take in account that the press coverage about the EPO scandal was huge in The Netherlands. A few weeks before the referendum, all Dutch citizens watched on television the EPO vice-president not respecting fundamental rights and denigrating the Dutch justice.Of course, some experts will explain that the EPO is not a European Institution. But the reality is that 99,99% of the EU citizens believe that the European Patent Office is the second biggest European institution of the European Union.

Now in the UK, we see the EU referendum. Recent polls have indicated that the British public are in favour of a withdrawal.

In France, and in other European countries, the citizens perceive more and more the European organisations/institutions as corrupted, arrogant, above the laws. The European Patent Office is the perfect example of such bad behaviour.

I believe that if we want the EU survive, the European organisations/institutions have to do the first step, improve their own image and behave correctly.

@HelloKitty: Surely, there must be some limits to what can be added to the service regulations [...]. Surely as well, there must be some way to impeach Battistelli or to,lifft his immunity.

No, no limits regarding the ServRegs, if the representatives vote in favour, even if against their national laws and obligations, and possibly against the intrest of their country. ATILO may decide it was illegal, but then the changes have already been implemented for about ten years, and in the meantime possibly even strengthened. And mostly ATILO only decides whether the rule adoption procedure has been followed.

And regarding Battistelli: sure he can be voted out of office. Article 11(4) EPC. Article 19(2) the PPI (Protocol on Provileges and Immunities) lays down the rules when the immunity of the President can be waived by the AC. But as we all know, the AC, most governments (including the host country Netherlands), and especially current top management do not desire to apply the provisions of the PPI, although the PPI is an integral part of the EPC (Articles 8 and 164(1) EPC). As such, the whole EPC should not be implemented without the PPI being implemented, and the PPI includes "the organisation shall co-operate at all times with the competent authorities of the Contradting States in order to [...] ensure the observance of police regulations and regulations concerning health, labour inspection, and to prevent any abuse of the priviledges, immunities and facilities provided for in this protocol" (Art. 20(1)PPI).

HelloKitty,With all respect, the EPO does not lack legal brains - including externally recruited lawyers and BoA members. The law just doesn't exist in the EPO because of immunity and the member states concerns not to infringe it. Rightly or wrongly.

I'm surprised Julian Assange and Osama bin laden didn't camp out at the EPO with it being so untouchable. All that lovely cheap food, saunas, spas, gymnasiums, polo pitches and horses. Have we finally identified the home of Lord Lucan?

The bickering I see saddens me - not that bickering per se is "bad," and certainly not because such bickering is absent on my side of the pond - quite the opposite actually: the bickering and sniping becomes the focus itself and the issue remains unresolved is what saddens - and not one side (or the other) being "impolite." One can be impolite and still have a dialogue, addressing points and counter points.

"Failure to engage with the real issues + venting spleen at anyone who irks you = troll"

Venting spleen is not the thing that should be shunned - it is the failure to engage that is the real issue.

Such is a deliberate mechanism - and not just employed by one side or the other. If you can "tr011" the other side into a rant, you "win" because avoid engaging- such is an unfortunate aspect of blog discourse. This need not even rise to an impolite level (the usual fallback which is itself a "win" for those wanting to avoid actual critical thinking and dialogue on points and counter points raised (an answer of course is to identify those who do nothing more than hold their one-way monologues and remove such blandly and merely repetitious material - granted that takes some work).

From my vantage point over here, whether or not the catch-22 has been "rightfully" engaged is just not material: the effective result is that EP management - for whatever reason - is currently engaging in a power grab that no one single country appears to want to stop.

There is a real problem - now. Not later when some draconian action is taken. Theodore Roosevelt had a saying that is being co-opted here: https://en.wikipedia.org/wiki/Big_Stick_ideology

One does not have to be hit with a big stick for the ideology to work.

The EPO was founded many years ago when there was still a sense of moral obligation and integrity even with politicians, managers and corporations. Being sincere and moral this is why those who founded the EPO could not conceive that this could/would change, because for that they would need to think in an immoral way.Now all those in charge of the EPO care about is how I can I keep my present position, how can I make myself look good and maybe even work my way up the ladder, with no respect for anyone but maybe their betters (at least butkiss in public). Any suffering ist just collateral damage to the bigger cause. Those disadvantaged shouldn't take it personally.Facts are distorted by managment saying that their intentions are good. But there is a saying; the way to hell is paved with good intentions. And that is exactly where the EPO is going.

The real issue is acquired rights. When examiners joined the EPO many years ago they signed a contract. They were given a Codex where the rights and obligations of both parties were fixed. For an examiner this meant working to examine patents with a 40 hr work week. In return for this the examiner was given a certain salary with incremental increases in pay being promised, at least within the grade. Promotion from A1 to A2 to A3 to A4 was not a right but could be expected with reasonable performance. If you performed very well you were promoted faster if you did very badly you could be blocked for promotion. This is the same in National systems.The reason for this is to try and keep officials happy with a good pay package so as not to be tempted to cede to corruption. With the new system the incremental steps have been unilatterally abolished without agreement with staff representation. The admin council agreed and as such is complicit. The new system pitches one examiner against another for production. Only the best get promoted. Although this sounds reasonable, it is not. There are ways to rig the system to make you look good. In effect promotion or a step increase is basically a bonus for being a high producer (considering quality is in the eye of the beholder). Look what bonuses did for the banking system. Is this really what the Admin Council want for the EPO?Also employees were forced on signing their contract to agree to a pay into the system of social security and invalidity, with the promise of certain rights. The EPO has unilatterally reduced or scrapped certain benefits, basically retroactively changing the contract, without agreement from the staff and without any compensation. At the same time they have changed the internal medical systems, which has even had the gall to question external doctors certificates. The office has given itself the right to check whether you are really sick. To this end during your whole period of illness you are obliged to stay at home at certain times (which can be counterproductive to improving health. But who cares.)The only reason that the EPO can do this is because management is not checked by the Admin Council. For whatever reason. The admin council lets itself be bamboozled by BB stating that they believe that this is legal, and then to go along with it.Does the admin council forget that there are nationals of their own countries working at the EPO, who as citizens of their respective countries are used to certain human rights which they are denied, by virtue of having joined an organization serving their respective countries by examining patents and protecting the european public from undeserved monopolies. And how are they rewarded? ......Thank you very much Admin council. Please take your respective responsibility and do what is right and not what is in your own interest. Treat us as human beings and not cash cows.

Here is an example of a restrictive covenant which was upheld by the Danish Courts:http://www.bailii.org/ew/cases/EWCA/Civ/2016/541.html(see §43 onwards)

Here, compensation of 50% of final salary was paid for a 12 month covenant, with the prohibited acts restricted fairly narrowly. While there may be good reasons for the EPO to restrict certain acts after employment at the EPO ends, it is reasonable for the restrictions to be narrowly defined such they demonstrably protect the interests of the office rather than being open ended subject to the whims of the management of the day.

Staff Regulations of the European Union Article 16: An official shall, after leaving the service, continue to be bound by the duty to behave with integrity and discretion as regards the acceptance of certain appointments or benefits. Officials intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service shall inform their institution thereof. If that activity is related to the work carried out by the official during the last three years of service and could lead to a conflict with the legitimate interests of the institution, the Appointing Authority may, having regard to the interests of the service, either forbid him from undertaking it or give its approval subject to any conditions it thinks fit. The institution shall, after consulting the Joint Committee, notify its decision within 30 working days of being so informed. If no such notification has been made by the end of that period, this shall be deemed to constitute implicit acceptance.

Looks very much like the new service regulations article 19. Nevertheless there are some differences which can be problematic.

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